Citation NR: 9704826
Decision Date: 02/11/97 Archive Date: 02/19/97
DOCKET NO. 94-05 732 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
Entitlement to service connection for right ear hearing loss,
malaria, an eye disorder, a stomach disorder, and residuals
of burns of the head and chest.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
Richard V. Chamberlain, Counsel
INTRODUCTION
The veteran had active service from December 1941 to
September 1945 and from August 1950 to June 1951.
This appeal arises from September 1992 and October 1993
rating decisions by the Department of Veterans Affairs (VA)
Regional Office (RO) in Winston-Salem, North Carolina, that
denied service connection for right ear hearing loss,
malaria, an eye disorder, a stomach disorder, and residuals
of burns of the head and chest. The veteran has appealed to
the Board of Veterans’ Appeals (Board) for service connection
for these conditions. The Board remanded the case to the RO
in September 1996 for additional development, and the case
was returned to the Board in 1997.
In a written argument dated in January 1997, the
representative requested service connection for hemorrhoids.
This claim has not been adjudicated by the RO and it will not
be addressed by the Board. This matter is referred to the RO
for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has hearing loss of the right
ear, an eye disorder, and residuals of burns of the head and
chest which are the result of an explosion of airplane
gasoline fuel around 1943-1944 while stationed in the South
Pacific during World War II. He maintains that he contracted
malaria in service during World War II and that he has a
stomach disorder as the result of being struck by the hawser
of a ship during service in the South Pacific. He also
asserts that he his stomach and eye problems are related to
exposure to ionizing radiation from working on a ship during
his second period of service that had been exposed to such
radiation from atomic bomb blasts. He requests service
connection for right ear hearing loss, malaria, an eye
disorder, a stomach disorder, and residuals of burns of the
head and chest. His representative requests a remand of the
case to the RO for a VA examination of the veteran in order
to demonstrate the presence of the claimed disorders prior to
appellate consideration of the claim, as well as
consideration of the provisions of 38 U.S.C.A. § 1154(b)
(West 1991).
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence,
and for the following reasons and bases, it is the decision
of the Board that the veteran has not submitted evidence of
well-grounded claims for service connection for right ear
hearing loss, malaria, an eye disorder, a stomach disorder,
and residuals of burns of the head and chest.
FINDING OF FACT
The veteran has not submitted competent evidence currently
demonstrating the presence of chronic right ear hearing loss,
malaria, a chronic eye disorder, a chronic stomach disorder,
and chronic residuals of burns of the head and chest; his
claims for service connection for such disorders, including
service connection for eye and stomach disorders based on
ionizing radiation exposure, are not plausible.
CONCLUSION OF LAW
The claims for service connection for right ear hearing loss,
malaria, an eye disorder, a stomach disorder, and residuals
of burns of the head and chest are not well grounded.
38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
In order to establish service connection for a disorder, the
evidence must demonstrate the presence of it and that it
resulted from disease or injury incurred in service.
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1995).
Service connection may be granted for a disease based on
ionizing radiation when there is medical evidence linking it
to such incident. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir.
1994). In the absence of competent medical evidence linking
a disability to service, diseases specific to radiation-
exposed veterans, such as various forms of cancers, listed
under 38 C.F.R. § 3.309(d) (1995) will be presumed to have
been incurred in active service if the veteran participated
in a “radiation risk activity” such as onsite participation
in an atmospheric nuclear test. 38 C.F.R. § 3.309(d)(3)(ii).
Other “radiogenic” diseases, such as various forms of cancer,
listed under 38 C.F.R. § 3.311(b) (1995) found 5 years or
more after service in an ionizing radiation exposed veteran
may be service-connected if the Under Secretary for Benefits
for VA determines that they are related to ionizing radiation
exposure while in service or if they are otherwise linked
medically to ionizing radiation exposure while in service.
The threshold question with regard to the claims being
considered in this appeal is whether the veteran has
presented evidence of well-grounded claims; that is, claims
that are plausible. If he has not presented evidence of
well-grounded claims, his appeal must fail, and there is no
duty to assist him further in the development of the claims.
38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78
(1990).
In order for a claim to be well grounded, various factors
must be present. Caluza v. Brown, 7 Vet.App. 498, 506
(1995). There must be competent evidence of a current
disability (a medical diagnosis). Brammer v. Derwinski,
3 Vet.App. 223, 225 (1992); Rabideau v. Derwinski,
2 Vet.App. 141, 144 (1992). There must also be competent
evidence showing incurrence or aggravation of a disease or
injury in service (lay or medical evidence) Layno v. Brown,
6 Vet.App. 465 (1994); Cartright v. Derwinski, 2 Vet.App. 24
(1991); and of a nexus between the inservice injury or
disease and the current disability (medical evidence),
Lathan v. Brown, 7 Vet.App. 359 (1995); Grottveit v. Brown,
5 Vet.App. 91 (1993). The nexus requirement may be satisfied
by a presumption that certain diseases manifesting themselves
within certain prescribed periods are related to service.
Traut v. Brown, 6 Vet.App. 495 (1994); Goodsell v. Brown,
5 Vet.App. 36 (1993).
The veteran’s service medical records and various service
documents concerning his two periods of active service do not
show the presence of the claimed disorders. A service
department letter dated in 1993 notes that there is no record
of his exposure to ionizing radiation while in service. Nor
are there any post-service medical records demonstrating the
presence of the claimed disorders. The veteran reported
being told in 1992 by a physician that he had right ear
hearing loss due to his exposure to an explosion during World
War II, and the RO has asked him to submit evidence of
treatment for any of the claimed conditions, but he has not
submitted any medical evidence. He has submitted a
photograph of himself enlisting in the Inactive Marine Corps
Reserve in 1947, but no medical evidence.
Since there is no competent evidence (medical) showing a
chronic right ear hearing loss, malaria, a chronic eye
disorder, a chronic stomach disorder, or chronic residuals of
burns of the head and chest, the claims for service
connection for these conditions are not well grounded.
Brammer, 3 Vet.App. 223, 225; Rabideau, 2 Vet.App. 141, 144.
The veteran’s assertions indicate that he believes the
conditions being considered in this appeal are related to
service and that eye and stomach disorders are due to
ionizing radiation exposure in service, but to be well
grounded, claims must be supported by evidence and not just
allegations. Tirpak v. Derwinski, 2 Vet.App. 609 (1992).
The veteran’s assertions that he has various medical
disorders is not reliable evidence because, as a layman, he
does not have the competence to make medical diagnoses.
Espiritu v. Derwinski, 2 Vet.App. 492 (1992).
The Board notes the requests from the representative for a
remand of the case in order to have the veteran undergo VA
examination to determine whether he has the claimed disorders
and for consideration of the provisions of 38 U.S.C.A.
§ 1154(b). However, in the absence of any medical evidence
of treatment or diagnosis of the claimed conditions for more
than 40 years after service, or any such evidence linking any
disorder that may now be present to an incident of service,
the Board finds that no useful purpose would be served by
such an examination. The veteran is advised that he may
reopen the claim for service connection for any of the
disorders being considered in this appeal at any time by
notifying the RO of such an intention and submitting
supporting evidence. An example of supporting evidence is a
medical report showing the presence of the claimed disorder
with an opinion linking it to an incident of service.
Robinette v. Brown, 8 Vet.App. 69 (1995).
ORDER
Service connection for right ear hearing loss, malaria, an
eye disorder, a stomach disorder, and residuals of burns of
the head and chest is denied as not well grounded.
J. E. DAY
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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